Like
most custody disputes, this case cries out for a resolution
to be dictated by the parties who have the most to gain and
lose-the parents. But like most custody disputes, the
decision over the life of a child-in this case,
3½-year-old Carlos Felipe Viciedo Cadelo-is to be made
not by those who love him-Petitioner father and Respondent
mother-but by a stranger-a judge who has taken an oath to
uphold the law. In this case, the applicable law is the Hague
Convention on the Civil Aspects of International Child
Abduction, signed by the two countries in question here:
Canada and the United States; and the International Child
Abduction Remedies Act of 1988, 42 U.S.C. §11603(b),
passed by the United States Congress to implement the Hague
Convention. The treaty dictates whether the custodial battle
should be fought in a state court in Florida where the
mother, Claudia Cadelo De Nevi, now lives or by a court in
Quebec, Canada where the father, Raymel Viciedo Valero, has
resided. And the heart-wrenching permanent ruling is to be
made by this federal judge in Miami.

The
federal judge does not decide where the child will be better
off, whether: (1) in Miami, where he presently receives
needed care from professionals and a loving mother, who is a
Cuban national and has sought asylum in the United States
after fleeing Canada where she lived, on and off, for more
than a year near the child's father; or (2) with the
child's father, also a Cuban national who works in rural
Quebec and now lives in a small town, Drummondville, after
residing in a very small village, Saint-Guillaume, on and
off, with the mother and child.

Rather,
the narrow issue before this Court is to decide: (1) if the
mother wrongfully removed the child from Canada in late
September 2016; and (2) if so proven by the father
petitioning for the child's return to Quebec, whether the
mother has met her burden to prove that the return of the
child would cause great risk of physical or psychological
harm to the child.

I.
THE LAW

The
Hague Convention requires Petitioner father to prove, by a
preponderance of the evidence, three elements: (1) the
habitual residence of the child immediately before the date
of the alleged wrongful removal; (2) whether the removal was
in breach of the father's custody rights under Canadian
law; and (3) whether the father exercised custody rights at
the time of the alleged wrongful removal. If the father
proves the facts to support those three elements, then
Respondent mother has the opportunity to prove, as an
affirmative defense under Article 13(b) of the Hague
Convention, that there is a grave risk that the child's
return to Quebec would expose the child to physical or
psychological harm or otherwise place the child in an
intolerable situation. Respondent mother opposing the
child's return to Canada bears the burden of establishing
the grave risk exception by clear and convincing evidence.
See 42 U.S.C. §11603(e)(2)(A).

II.
THE FACTS

Most of
the facts are undisputed. The father is a Cuban national who
has become a resident in Quebec, Canada. The mother is a
Cuban national who now seeks political asylum in the United
States, but previously lived with the father and their son in
Quebec, Canada from March 25, 2016 to September 20, 2016
before she removed the child to the United States. Before
that six-month stay in Quebec, the mother had already lived
in Canada from November 14, 2015 to January 18, 2016; from
September 24, 2015 to October 26, 2015; from February 7, 2015
to March 2, 2015; and from March 23, 2014 to September 21,
2014.

The
mother travelled back and forth from Canada to Cuba to
receive cancer treatment, which unfortunately resulted in the
death of the couple's second unborn child. The dates of
the mother's stays in Canada are not in dispute, but
their legal significance on a Canadian visitor's visa was
hotly debated.

The
parties also disputed the couple's living conditions
while in Canada; the amount of financial support provided by
the father; the existence of healthcare insurance in Canada;
the availability of therapists for the child and how to pay
for therapy; and the degree of deterioration of the unmarried
couple's relationship. As in most custody fights, the
unfortunate role of the lawyers was to present all the
negative aspects of each parent. And that they did. Thus, the
father was presented as a controlling individual, obsessive
over neatness and order in his two-bedroom apartment. He was
shown to be authoritative, demanding, and somewhat arrogant,
and during a three-day visit by a friend, Paloma Duong from
Boston, as an ungracious host. The father spent money on his
cars and paid the rent when the couple separated, but at the
very end of the mother's stay in Canada bought food from
the benefits received from the Quebec authorities provided
for the child's welfare.

On the
other hand, the mother was shown as a woman who used some of
the child's welfare money to travel to Cuba with the
child. She did not like living with no car in a village in
rural Quebec with one main road and 1500 inhabitants, no
major supermarkets, and substantial isolation compared to
metropolitan Miami. She testified that there is plenty of
food in Quebec compared to Havana, but of course, that Miami
is better than both.

III.
FINDINGS

A.
Habitual Residence

The
Court easily finds that the habitual residence of the child
before his removal by the mother in late September 2016 was
Quebec, Canada. The mother's attorney complained
throughout the trial and in closing argument that the
mother's habitual residence at the time of the alleged
removal was in Cuba. It is undisputed that the mother had a
physical residence in Cuba and received medical treatment in
Cuba, where both parents and the child were born. But, both
parties agreed that Cuba, which incidentally is not a
signatory to the Hague Convention, was a country that both
parents abandoned and a country where neither parent wants to
exercise parental rights. Thus, the Court declined to hear
more evidence about Cuba. The mother's counsel argued
that since the alleged habitual residence of the child was
Cuba at the time of the removal from Canada, then this Court
is powerless to rule under the Hague Convention. ...

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